An Independent Children’s Lawyer (‘ICL’) may be appointed in parenting matters to help advocate for the best interests of the child or children where proceedings have been commenced in the Family Court. ICLs are appointed where there are allegations of violence, severe neglect, drug use, alcohol misuse, or mental health issues that impact the child or children of a relationship.
The main responsibility of the ICL is to offer an unbiased assessment of what decisions or arrangements would serve a child’s best interests. They must maintain impartiality when interacting with other parties involved in the proceedings (usually the child or children’s parents or grandparents), concentrating solely on the child’s welfare. If the ICL identifies a course of action that would most effectively advance the child’s interests, their presentations to the Court should reflect this.
Recent amendments to the Family Law Act 1975 now mandate that an ICL must meet with the child or children they represent (provided the child or children are old enough). This interaction aims to provide the child/ren an opportunity to express their views on matters relevant to the proceedings.
Previously, the ICL had the discretion to decide whether such meetings were necessary. Without such meetings, the child’s perspectives could only be conveyed impartially through a report from a Family Consultant (who is an employee of the Court); normally through a child inclusive Case Assessment Conference, which is only actioned upon court orders made by a Magistrate or Judge; or through a Single Expert Witness.
There are, however, exceptions to the new requirements, including instances where the child is under five years old (unless deemed appropriate), where the child declines to meet the ICL or share their views, or where exceptional circumstances exist. These exceptional circumstances must be determined by the Court and could include situations where a meeting with the child might pose a risk of physical or psychological harm that cannot be safely managed or where a meeting may significantly impact the child’s well-being.
In the recent case of Tandy & Padula (2024), the Applicant’s father attempted to claim ‘exceptional circumstances’ on the basis that the child had genuinely expressed to him on several occasions that she did not wish to meet with the ICL and that she cannot be compelled to express a view. Her Honour found that the obligations of the ICL to present the child’s best interests outweighed the child’s wish to not be interviewed, which may have been influenced by the father’s vocal opinion on the issue. Her Honour’s decision emphasises the dense nature of the newly legislated obligations.
The ICL can also dictate the timing and engagement procedure with the child, subject to any Court orders. If the child does express views pertinent to the proceedings, the ICL is now obligated to present these views to the Court, whereas this was previously not the case.
While these amendments are generally aimed at ensuring children’s best interests are adequately represented in parenting cases, practical challenges may arise in their implementation. Variances in the availability of ICLs and funding across the different jurisdictions could impact the effectiveness of these measures. Typically, the Legal Aid organization in the state or territory handles the arrangements for the ICL, including the selection of the lawyer and the assessment of expenses involved.
Additionally, children may opt not to express strongly held views to the ICL due to concerns about the repercussions of their views being presented to the Court and their parents. This hesitation is not new, as Family Consultants and Single Expert Witnesses have historically advised children that they are not obliged to share their views. Arguably, however, Family Consultants and Single Expert Witnesses, who are typically either qualified and very experiences social workers, psychologists or psychiatrists are much better placed and trained to speak to children, assess any nuances that may be occurring, such as coaching by a particular parent, and give educated advice to the Court about these findings, than are ICLs, who, even though they receive specific training to become an ICL, are lawyers who don’t have the qualifications and experience of a Family Consultant or a Single Expert Witness.
There are concerns amongst ICLs that this reporting obligation may open them up to being called as witnesses in matters, which again, is not seen traditionally as their role.
The unfolding of these new requirements in parenting proceedings involving ICLs will be of considerable interest, particularly in how they are applied and their impact on safeguarding children’s welfare as mentioned in Tandy & Padula.
About the Authors: This article is co-authored by Avinash and Jacqui. Avinash graduated from Murdoch University with a Master of Laws and a Bachelor of Business, majoring in finance. Jacqui is a Perth lawyer and director at Lynn & Brown Lawyers. Jacqui has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.
